Kaly and Kaly - [2007] FamCA 628

FAMILY COURT OF AUSTRALIA

KALY & KALY

[2007] FamCA 628

FAMILY LAW - STATUTORY INTERPRETATION - Application to transfer part of pending proceedings which relate to alteration of property interests to Federal Magistrates Court and for this court to retain the parenting aspect of the same case in the less adversarial trial process – Litigants seek transfer on basis that they will be accorded a speedier hearing in the Federal Magistrates Court – Consideration of whether power to transfer proceedings includes power to transfer only part of proceedings – Section 33B of the Family Law Act considered – Undesirability of conducting proceedings in 2 courts concurrently – Intention of legislation discerned by reference to Explanatory Memoranda to the Bills which established the Federal Magistrates Court in federal court system – All or nothing, not satisfied that there is power to transfer only part of pending proceedings – Application not granted.

Family Law Act 1975
Federal Magistrates Act 1999
Federal Magistrates (Consequential Amendments) Bill 1999
Federal Magistrates Bill 1999
Acts Interpretation Act 1901 (Cth)

APPLICANT:

Mrs Kaly

RESPONDENT:

Mr Kaly

FILE NUMBER:

DGF

2006

DATE DELIVERED:

2 May 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

2 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P. Le Souef

SOLICITOR FOR THE APPLICANT:

Le Souef Preston & Associates

THE RESPONDENT:

In person

Orders

That the further hearing of the wife’s application in a case filed 3 April 2007 to Justice Watt on Monday 4 June 2007 at 2:15pm.
That by not later than Friday 25 May 2007 the husband and wife exchange a minute of the Orders which he or she seeks in relation to property specifying whether such Orders will be sought pursuant to section 78 or section 79 of the Family Law Act 1975.
That by not later than Friday 25 May 2007 the husband inform the wife and the wife inform the husband, via their respective solicitors if they are legally represented, of whether he or she will seek that property matters be determined by the Honourable Justice Watt under Division 12A of the Family Law Act 1975.
That this matter be listed before me on Monday 4 June 2007 following the conclusion of the proceedings before Justice Watt Justice Watt so orders, if either of the parties wish to do so on notice to other and by arrangement with my Associate … ( … .

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Kaly & Kaly.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 44 of 2006

MRS KALY

Applicant

And

MR KALY

Respondent

REASONS FOR JUDGMENT

(ex tempore)

This matter comes before me in the duty list. It is the first return date of the wife's application in a case filed 3 April 2007.
The wife is represented by Mr Le Souef, solicitor. The husband is self represented. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaly and Kaly

Details

AGLC: Kaly and Kaly [2007] FamCA 628
Case: [2007] FamCA 628
Decision Date: 2 May 2007

CaseChat Overview and Summary

In the matter of *Kaly and Kaly*, heard before Bennett J, the dispute concerned applications relating to property. The specific nature of the property dispute and the precise relief sought by each party are not fully detailed in the provided text, but it is clear that the proceedings involve the division or determination of property interests.

The court was required to determine the procedural path for the resolution of the property matters. This included establishing timelines for the exchange of proposed orders, specifying the legislative basis for those orders (sections 78 or 79 of the *Family Law Act 1975*), and deciding whether the property matters would be heard by Justice Watt under Division 12A of the *Family Law Act 1975*.

Bennett J ordered that the further hearing of the wife's application be listed for 4 June 2007, following proceedings before Justice Watt. Crucially, the court directed that by 25 May 2007, both the husband and wife were to exchange their proposed property orders, clearly stating whether these were sought under section 78 or section 79 of the *Family Law Act 1975*. Furthermore, by the same date, each party was to inform the other of their intention regarding the determination of property matters by Justice Watt under Division 12A. The matter was to be listed before Bennett J on 4 June 2007, after the conclusion of Justice Watt's proceedings, with liberty to either party to seek further arrangements on notice to the other.

Orders

Orders of the court

That the further hearing of the wife’s application in a case filed 3 April 2007 to Justice Watt on Monday 4 June 2007 at 2:15pm.

That by not later than Friday 25 May 2007 the husband and wife exchange a minute of the Orders which he or she seeks in relation to property specifying whether such Orders will be sought pursuant to section 78 or section 79 of the Family Law Act 1975.

That by not later than Friday 25 May 2007 the husband inform the wife and the wife inform the husband, via their respective solicitors if they are legally represented, of whether he or she will seek that property matters be determined by the Honourable Justice Watt under Division 12A of the Family Law Act 1975.

That this matter be listed before me on Monday 4 June 2007 following the conclusion of the proceedings before Justice Watt Justice Watt so orders, if either of the parties wish to do so on notice to other and by arrangement with my Associate … ( … .

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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